People v. Enriquez

• Decision Date: 23 March 1977
• Docket Number: Cr. 19699
• Citation: 19 Cal.3d 221,561 P.2d 261,137 Cal.Rptr. 171
• Court: California Supreme Court
• Parties: , 561 P.2d 261, 3 A.L.R.4th 73 The PEOPLE, Plaintiff and Respondent, v. Salvador Ray ENRIQUEZ, Defendant and Appellant.

Page 171

137 Cal.Rptr. 171

19 Cal.3d 221, 561 P.2d 261, 3 A.L.R.4th 73

The PEOPLE, Plaintiff and Respondent, v. Salvador Ray ENRIQUEZ, Defendant and Appellant.

Cr. 19699.

Supreme Court of California, In Bank.

March 23, 1977.

Jeffrey C. McIntyre, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., Russell Iungerich and Carol Wendelin Pollack, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Justice. ^*

Salvador Ray Enriquez appeals from a judgment after convictions by jury of assault with a deadly weapon (Pen.Code, § 245, subd. (a)) and voluntary manslaughter (Pen.Code, § 192, subd. 1). ¹

Defendant contends as to the assault conviction that the trial court erred in receiving evidence of a prior conviction of a witness of assaulting the same victim in the same encounter, and in its failure to give particular instructions on self-defense. He also contends that the indeterminate sentence provided for a violation of section 245, subdivision (a), is unconstitutional. We reject all of such contentions. We agree, however, with defendant's contention as to the manslaughter conviction that because the People failed to demonstrate that they had exercised due diligence in locating a witness the court erred in receiving the prior recorded testimony of such witness. We deem the error to be prejudicial and reverse the judgment as to the manslaughter conviction. We also express our views as to the admissibility of certain of defendant's extrajudicial statements, as such issues may again be presented should defendant be retried for the homicide.

CONVICTION OF ASSAULT WITH A DEADLY WEAPON

While attending a public carnival, David Corona, his brother and a friend were approached by a group of about 12 young men, including defendant and Steven Lagunas. Steven instigated a fist fight with David and both Steven's and David's companions joined in the affray. Defendant was armed with a linoleum knife with which he attacked David, cutting him seven times. Defendant left the scene with his companions when someone announced that police were arriving. David and his brother both identified defendant from photographs exhibited to them by police. David also identified defendant at the preliminary hearing and at trial. A bloodstained linoleum knife was found near the scene of the fight and was identified by David and his brother as the weapon used by defendant during the fight.

At trial Steven Lagunas was called as a witness for the People. When interviewed by a police officer he had stated that defendant had been carrying a linoleum cutting knife in his belt. Steven testified at trial, however, that he had told the officer only that defendant 'might have' had a linoleum cutting knife in his belt and that he 'might have told' the officer that defendant stabbed David. He further testified that defendant had not fought with a knife but had used only his hands and fists. On redirect examination, in response to the prosecutor's question, Steven conceded that he had been convicted of assaulting David and was then on probation. No objection was raised by defendant.

Defendant testified in his own behalf that on the evening of the fight he was drunk; that he saw David and Steven swinging at each other; that while witnessing the affray he was kicked in the head by David's brother; that he saw David in front of him and began swinging at David with his fists; and that he did not have or use a knife at any time. Other defense witnesses testified that although they were present at the fight they saw no knife in defendant's hands.

Defendant now contends that the prior conviction to which Steven admitted was a misdemeanor (§§ 240, 241) and therefore was not a matter upon which a witness could be impeached. (See Evid.Code, §§ 787, 788.) As no objection was raised at trial, however, defendant cannot now raise the issue on appeal. (People v. Nugent (1971) 18 Cal.App.3d 911, 917, 96 Cal.Rptr. 209.) Nor can defendant rely on a later objection during the trial by defense counsel which was directed to the prosecutor's attempt to discredit Steven's testimony with his prior inconsistent statement as such objection did not serve to challenge the disclosure of the prior conviction. (See People v. Lint (1960) 182 Cal.App.2d 402, 414--415, 6 Cal.Rptr. 95.) Contrary to defendant's further contention, the trial court had no duty to instruct the jury on the issue sua sponte and the decisions cited in support of such contention are inapposite.

Defendant also complains that the trial court's instructions on self-defense were inadequate as they did not fairly advise that such defense was applicable to the assault count as well as to the homicide count. Although he did not request such instructions, defendant now claims that the court should have instructed in terms of CALJIC Nos. 5.30 and 5.31.

The court instructed the jurors on the general principles of self-defense. (CALJIC Nos. 5.51--5.53.) A trial court is not, absent a request therefor, required to instruct on specific points developed out of the particular facts presented at trial. (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Hood (1969) 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370; People v. Cisneros (1973) 34 Cal.App.3d 399, 418--419, 110 Cal.Rptr. 269.) The question presented is whether under the circumstances of this case the instructions which defendant now urges should have been given related to a specific concept of self-defense which the court could not readily conceive as being relied upon by defendant. (People v. Wade (1959) 53 Cal.2d 322, 335, 1 Cal.Rptr. 683, 692, 348 P.2d 116, 125: 'Omniscience is not required of our trial courts.')

The evidence most favorable to defendant indicated that he had been drawn into the fight when the victim kicked defendant and struck him on the jaw. There was no evidence suggesting that either the victim or his companions were armed. CALJIC No. 5.30 instructs that a person being subjected to an assault may use all force he believes reasonably necessary to prevent an injury which appears imminent. CALJIC No. 5.31, however, places a limitation on the amount of retaliatory force which may be used against an assault with fists. Such an assault does not justify the use of a deadly weapon in self-defense. The court, which had generally instructed in terms which would permit the use of reasonable force, including deadly force if necessary, could not be aware that defendant, in the face of persuasive evidence that he had used deadly force, nevertheless desired further instructions which would advise the jury that although he could defend against a simple attack by fists he could not use deadly force. Such instructions might well be deemed to prejudice the defense generally. If defendant nevertheless desired instruction on the specific point, it was incumbent upon him to request them. He cannot wait until the jury has rejected his general claim of self-defense and then be heard to complain about the failure to instruct on a specific posture of the defense which might have detracted from the defense generally. ²

Defendant finally contends as to the assault conviction that the procedures set out in People v. Wingo (1975) 14 Cal.3d 169, 121 Cal.Rptr. 97, 534 P.2d 1001 and People v. Romo (1975) 14 Cal.3d 189, 121 Cal.Rptr. 111, 534 P.2d 1015 for attacking an indeterminate sentence for a violation of section 245, subdivision (a) are unconstitutional. He urges numerous infringements of constitutional proportions.

Defendant first claims that he is denied the effective assistance of counsel because if he is compelled to attack his indeterminate sentence as fixed by the Adult Authority he will be compelled to seek without the initial aid of counsel, a writ of habeas corpus in a proceeding in which he has the right to counsel. Such argument assumes, however, a particular infringement of a constitutional right prior to the time that such has occurred. If any of defendant's constitutional rights have thus far been infringed, including his right to be sentenced under a law which is not constitutionally defective, such issues can be raised on this appeal at which he is entitled to and is in fact represented by counsel. (See People v. Wingo, supra, 14 Cal.3d 169, 183, fn. 14, 121 Cal.Rptr. 97, 534 P.2d 1001.)

Defendant next claims he is denied equal protection of the law because other felons not subjected to an indefinite term of imprisonment may attack the length of their terms on direct appeal. The equal protection clause does not assure defendant of the same treatment as all other felons; it assures him only, in this respect, that he will receive like treatment with all other persons similarly situated. (Truax v. Corrigan (1921) 257 U.S. 312, 333, 42 S.Ct. 124, 66 L.Ed. 254; cf. Tigner v. Texas (1940) 310 U.S. 141, 147, 60 S.Ct. 879, 84 L.Ed. 1124; People v. Romo, supra, 14 Cal.3d 189, 196, 121 Cal.Rptr. 111, 534 P.2d 1015.) Defendant is in a special class of felons whose crimes warrant a possible life sentence and he is entitled to be treated the same as all others in that class. (See People v. Wingo, supra, 14 Cal.3d 169, 183, 121 Cal.Rptr. 97, 534 P.2d 1001.) He does not claim that he is not receiving the same treatment as others in that class, or that the legislative classification for his crime is defective. (See People v. Romo, supra, 14 Cal.3d 189, 196--197, 121 Cal.Rptr. 111, 534 P.2d 1015.)

Defendant further claims that it is fundamentally unfair to require a convict untrained in the law to challenge the sentence for his crime by habeas corpus proceedings, and to require that he repeat his challenge each time the sentence is redetermined. Due process, however, does not purport to relieve a person seeking to invoke a fundamental right of the burden...